Immigration Voices: Egads! I-9 Questions that Keep Me Up at Night

by Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

[Bloggers note:  Today's post comes from the vivid imagination and prolific keyboard of frequent guest blogger and immigration-compliance maven Nicole "Nici" Kersey who shares her introspectively humorous musings at almost a TMI level while informing us of anxiety-inducing Form I-9 issues that stress her (and likely most employers) out.  By the way, the photo image is not of Nici but of someone equally perplexed by gnawing I-9 questions]

---

Egads!  I-9 Questions that Keep Me Up at Night
By Nicole Kersey

After every social interaction in which I am a participant, I rehash the event to determine how many idiotic and/or offensive things I did and/or said. 

This rule applies to parties, meals, and even simple 10-second greetings as I pass someone in the hall.  I can spend days worrying about something I did, didn’t do, said, or didn’t say, prompting me to send an e-mail or text a week later to apologize to the person I thought I offended, only to find that the person has no idea what I’m talking about.  This makes matters worse, as I have to explain what I did, didn’t do, said, or didn’t say and why the thing I did, didn’t do, said, or didn’t say might have been offensive (and why it was, instead, hilarious).  I really hate having to tell people that I am funny. 

I’ve always been an anxious person.  As thoughts fly through my mind, I’ll catch a glimpse of one, and it will worry me, but by the time I realize I’m worried, I can’t remember what it was that caused the worry.  I have to press rewind on my brain to catch the thought, worry about it, and release it.

Every so often, I catch myself feeling worry-free.  When this happens, it causes me to panic, as I am certain that I’ve forgotten to worry about something.  (And I usually have.)

When you are friends with Angelo on Facebook, you see a number of memes from “Meditating Lawyers.”  A recent one caught my attention.  It read

If you don’t try to stop whatever is going on in your mind, but merely observe it, eventually you’ll begin to feel a tremendous sense of relaxation, a vast sense of openness within your mind – which is in fact your natural mind, the naturally unperturbed background against which various thoughts come and go.

Mingyur Rinpoche

So I’m making an effort to observe and accept my constant anxiety.  I recently had an opportunity to observe my own anxiety as Christmas card season came and went, and I didn’t send a single card.
Right after I got married, I was feeling all grown up and sent Christmas cards to everyone I could think of.  We still had our invitation list from the wedding, and all of the addresses were at our fingertips.  I did not enjoy sending the cards, and being somewhat self-aware decided then and there to never do it again. 

For someone who is already anxious, Christmas card season is hell.  First you have to pick the card.  If it’s funny or says Christmas on it, someone might be offended.  If you’re going to send a photo card, you have to plan in advance and choose the right photo.  If you’re sending a newsletter, you have to make sure not to offend anyone by leaving out some event in which he was involved.  You have to write funny and meaningful stuff.  Find everyone’s address.  Make sure not to omit anyone.  You don’t want your cousin to bring the card up at the next family gathering (because of course it would be conversation-worthy) when a distant uncle sitting at the same table didn’t receive one. 

But the stress of sending cards is replaced by the worry that I may offend people who send me cards by not sending one back.  We move a lot, so people sending cards send me a pre-card message asking for our new address, giving me an opportunity to feel guilty even before receiving the card. 

And what to do about those cards that others send to us?  Send a thank you/apology note back explaining why we don’t send cards?  Keep them forever?  I don’t feel like I can toss a friend’s family photo in the garbage.  So we have a huge box in our attic containing every Christmas card, wedding invite, birthday card, etc. that we’ve ever received.  If I’m ever on the Supreme Court, maybe these will be useful for whoever is in charge of curating the “Nici museum,” but otherwise I’m just starting down the path of becoming a hoarder.

The number one reason that I don’t do holiday cards is that I don’t want to set a precedent.  Once you’ve sent a mind-blowingly awesome card, you have to follow through next year with one that blows even more.

Last year I made the mistake of writing a holiday-themed blog post for Angelo.  And this year I did not do one.  Ever since the twelfth day of Christmas, I’ve been anxious about this.  Did my reader(s) (are there more than one?) notice that I didn’t do one?  Are they mad at me?  Offended?  Do they think that Angelo didn’t like what I wrote and chose not to post it? 

To make myself feel better, I’m providing a belated Christmas gift to Angelo and to you.  Here are my top ten simple and easy ways to avoid fines for I-9 errors.  These issues are common, contribute to my self-diagnosed GAD (Generalized Anxiety Disorder), and once aware of them, employers can easily (and cheaply) avoid them.

Top Ten Questions that Make Me Anxious (or Top Ten Easily Avoidable I-9 Errors)

1. What's an I-9?  Many employers don’t know what an I-9 is.  If you are one of them, find out.  Now.  And start completing them.  You are required by law to have an I-9 on file for every current employee in the U.S. who was hired after November 6, 1986.  You are also required to have I-9s on file for certain former employees, but if you’re hearing the term “I-9” for the first time, you can’t solve that issue.  Focus on the current employees, then call an attorney to schedule training.
2. Don't I only have to do I-9s for foreigners?  Uh, no.  You have to do an I-9 for every new hire (see page 3 of the Handbook for Employers) who works in the U.S.  It doesn’t matter whether the person is a U.S. citizen, a green card holder, a foreign student, your best friend, or your grandmother. 
3. I track expiration dates carefully and reverify every time any I-9 document expires.  So I’m doing great, right?  No.  Make sure that you are only reverifying when you are required to do so.  You should never reverify an expiring driver’s license or green card (so long as the document was unexpired at the time the I-9 was completed).  You will usually only reverify when an individual’s employment authorization is set to expire or when he presented a receipt at the time of hire.  Call me or Angelo so that we can schedule training.  Getting this wrong can lead to an invasive, time-consuming, and potentially expensive audit by the Department of Justice. 
4. What’s reverification?  Yikes.  If you hire someone who has temporary work authorization (for example, someone who has an Employment Authorization card or who is working on an H-1B visa) you have to update the I-9 when the employee’s work authorization is set to expire.  (See page 12 of the Handbook for Employers.)  The I-9 must always evidence continuing eligibility to work in the U.S.  Again, call to schedule training.  Not reverifying could lead not only to fines but, in a worst-case scenario, to prison. 
5. It doesn’t matter if I’m a couple of days late, right?  Yeah, it does.  Not completing the I-9 on time is one of the most common mistakes employers make.  Tardiness is a substantive error, meaning that it can (and often will) lead to fines in the event of an inspection.  It’s an easy one for inspectors to identify, and immigration judges agree that tardiness is a reason to impose fines.  (See page 5 of the decision.)  Remember that the employee has to complete and sign Section 1 on or before the first day of work for pay and that you have to review original documents and complete and sign Section 2 by the end of the third business day after the first day of work for pay.   
6. So shouldn’t I just have the employee date the I-9 using his first day of work (and then backdate it myself)?  Surely no one would ever know, right?  Wrong.  This is fraud.  It is often detected by government inspectors, and it can lead to a poo storm.  Avoid said storm at all costs.  If the I-9 is late, it is late, but at least you completed it (see #1).  And by completing it, you have started the statute of limitations, meaning that the government has 5 years to inspect your I-9s, find the error, and file a complaint against you.  If those 5 years pass without incident, you can no longer be fined for the tardiness. 
7. I’m looking at my I-9s, and they look great.  The only problem is that a lot of employees didn’t check a box in Section 1 to indicate their status.  But they all presented U.S. passports and green cards, so their status is obvious, right?  Yes, their status seems obvious.  But that doesn’t mean that this is perceived as an “innocent” error by the government.  If an employee does not check one of the status boxes in Section 1, the employee’s attestation in Section 1 is deemed nearly meaningless by the government (and immigration judges have tended to side with the government on this).  And just to be clear, while the employee is the one who made the mistake, the employer is held responsible for making sure the employee completes Section 1 properly, so it is the employer, not the employee, who will be fined.  See page 15 of this decision.   
8. I copied and kept copies of the documents my employees presented for I-9 purposes, so I have proof on file that they are authorized to work.  I don’t have to put all of the document information on the form, do I?  While it may seem silly, yes, you do have to transcribe the document information onto the form.  Make sure that all of the fields are properly completed and that you have signed and dated Section 2 of the form.  Again, you can be fined for failing to do this.  Take a minute and do it.  See page 9 of this decision.  
9. There’s no way I’ve hired unauthorized workers.  I make everyone present extra documentation, so I’m absolutely sure that everyone is authorized to work.  How could I possibly be in trouble?  You could be in trouble for so-called “overdocumentation,” which is a form of discrimination.  Fines for this are equal to those for not having reviewed any documentation at all.  Make sure that you only require (and only accept) one document from List A or a combination of one List B and one List C document. 
10. Social Security cards are easy, right?  List C document.  Bam.  I’m done.  Not so fast.  Social Security cards have become increasingly confusing.  Remember the following:

1. Don’t accept a “restricted” card as a List C document.  If the card says “Not Valid for Employment” or “Valid for Work Only with DHS (or INS) Authorization,” you cannot accept it for List C.  It is probably a valid card, but you need to ask the employee to provide some other List A or C document instead.  See page 44 of the Handbook for Employers.   
2. Don’t accept a metal or plastic Social Security card.  These have never been issued by the government.  Note that these may just be recreations that employees had made so that they would be sturdy and could be carried in a wallet.  Tell the employee that he/she needs to present the original card or another List A or C document instead. 
3. Don’t accept a Social Security card “stub.”  This is the tear-off portion of the mailer that includes the employee’s address.  In the “olden days,” the stub was the same size and shape as the card and is easily mistaken for a card. 
4. Accept unsigned cards, so long as they appear to be genuine and to belong to the employee.   
5. Know that a print out verifying someone’s name and SSN is not a receipt for replacement of a lost, stolen, or damaged card.  See page 43 of the Handbook for Employers

Merry Belated Christmas.  I hope these tips are helpful.  And thank you for allowing me to move on and worry about something else.  To my friends and family:  watch out.  You may be getting Christmas cards from me in July.

P.S.  For those of you who are accustomed to a Cookie Monster reference, here’s a really awesome spoof on Catching Fire.  Wouldn’t want to disappoint.